Duluth City Attorney Bryan Brown said he believes it's unlikely that a 195-foot cell-phone tower will be built in Piedmont Heights, based on a decision issued Wednesday by a three-judge panel of the U.S. 8th Circuit Court of Appeals in St. Louis.
The panel reversed U.S. District Judge Donovan Frank's 2005 ruling that the city must approve the permit sought by James Bechthold, who owns the disputed 3.6-acre lot at 2901 Morris Thomas Road, and his business partners, Minnesota Towers Inc. and American Cellular Corp.
Bechthold and his partners filed their application for a special-use permit on Sept. 29, 2004. A petition opposing the tower was signed by 72 neighbors of the proposed site, saying they believed a telecommunications tower would lower their property values.
The Duluth Planning Commission recommended approval of the permit, but the City Council rejected the permit application on an 8-0 vote on Dec. 6, 2004 -- which was outside the 60 days in which the city was required to respond to the permit application. The time could be extended to 120 days if written notice was provided to the applicant. It wasn't.
Bechthold and his business partners filed a lawsuit against the city in U.S. District Court.
ADVERTISEMENT
Based on the city's failure to follow the required time lines, Frank ruled in December of 2005 that the special-use permit must be issued because of a "legal technicality." The city appealed that decision, leading to Wednesday's ruling.
"Our resolution of this issue turns on a practical reality, reinforced by a textual nuance in the statue," 8th Circuit Chief Judge James Loken of Minneapolis wrote in the eight-page decision. The appeals court determined that the city wasn't required to notify the tower proponents of the permit denial in writing within 60 days.
"Though the question is not free from doubt, we conclude the Supreme Court of Minnesota would answer it in the negative and uphold the city's denial of the Minnesota Towers application," Loken wrote.
Eighth Circuit Senior Judge C. Arlen Beam of Lincoln, Neb., dissented with Loken and 8th Circuit Judge Raymond Gruender of St. Louis.
Beam wrote that the city of Duluth admitted, in essence, that it faced a firm deadline to provide the plaintiffs written notice and failed to do so.
"Duluth now seeks to use this court as a cat's paw to 'pull its burning chestnuts from the fire,' " Beam wrote. He agreed with Frank and said that the permit should be issued as a matter of law.
Frank had earlier ruled that the city was justified in denying the permit for the tower because of its aesthetic impact and because it would diminish property values.
The case is being sent back to Frank for further proceedings consistent with the Court of Appeals decision.
ADVERTISEMENT
"It's a win for the city," Brown said. "The matter is being remanded to the district court. I don't know if the plaintiffs will appeal to the U.S. Supreme Court, but I think it's unlikely that will happen. I think the district court will order a final judgment in the city's favor. I think it's unlikely that the tower will ever be built."
On Wednesday, Bechthold expressed his frustration with the legal process and with the city.
"I just wish they would quit bouncing it around," he said. "I just want closure on it. I'm a business person, an automotive mechanic. ... I'm very disgruntled with the legal process in the city of Duluth. Especially when my tax dollars are fighting myself. It's ridiculous. It's very hard for any business to do business in Duluth."
The plaintiffs' attorney, Peter Beck of Minneapolis, couldn't be reached for comment.
MARK STODGHILL covers public safety and courts. He can be reached weekdays at (218) 723-5333 or by e-mail at mstodghill@duluthnews.com .
